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432 Chapter 19
LegalBrief in October 2009. 30 This was on the occasion of the JSC’s
decision, as is its constitutional duty, to nominate seven candidates for
posts as judges of the Constitutional Court from the 22 short-listed names
it had previously decided upon. Albertyn is paraphrased as saying the way
the JSC currently operated was not transparent and quoted as its operation
resulted in ‘us not ending up with the best constitutional lawyers because
we are too busy looking at other things’. Upon closer examination,
Albertyn’s call resolves into two separate appeals. One is that the criteria
for judicial selection be better articulated. 31 This call has been echoed
elsewhere, for instance, in a well-crafted editorial by former Constitutional
Court researcher Susannah Cowen. 32 The second appeal relates to the type
of questioning engaged in by the JSC commissioners. Albertyn perceived,
as indeed many members of the public at large do, that some candidates in
the JSC got an easy run and some got a hard run. In Albertyn’s view, there
should have been both greater consistency and, in particular, greater
attention to constitutional conversations. The interviews were like job
interviews but should have been conducted at a higher level. In this view,
the primary value of the potential openness of the hearings would be their
public educational potential.
Distinguishable from both of the above forms of transparency, the
concept of judicious transparency is rooted in the constitutional concept of
open justice. This concept is itself derived from the rights of freedom of
expression, the right of access to information, and the right of access to
court. It is further constituted by the direct implementation by judges of the
constitutional principle of openness. 33 A practice of judges related to
demands for openness, judicious transparency is a particular form of
transparency. 34 I would argue that it is not concerned, at least in the first
instance, with the individual dignity of any particular judge. Instead, it is
its manner of implementation that makes it particularly judicious. As for
its substantive value, the substance of that value is indicated by the three
rights from which the concept of open justice has been constructed.
29 the text would constitute another example as would Willis J’s statement regarding the
JSC hearings and Andrew Brown’s comment. More generally, the concept of public
transparency would seem to be completely included in the concept of open justice.
30 Legal Brief 6 October 2009.
31
The JSC did attempt to meet a request for disclosure of the criteria. See ‘Re: Request for
Access to Record of Public Body in terms of Section 18(1) of Promotion of Access to
Information Act 2 of 2000’ V Masangwana to M Desai (3 April 2009)( listing in a
paragraph the ‘wide variety of factors which are taken into account’).
32 S Cowen ‘What exactly are we looking for in the ideal SA judge?’ Business Day
17 September 2009. See also S Cowen ‘Judicial selection’ (cited in Response by Calland
& Oxtoby n 17).
33 See Open justice and beyond (discussing the appropriate test for limiting open justice).
34 The response of Calland & Oxtoby spends much of its time arguing that the meaning of
the concept of judicious transparency is unclear. They ask: ‘But is it the fact it is courts
or other such bodies acting which is important, or the nature of actions?’ It is both. As I
noted later in the conclusion: ‘There was no intermediary between the judges and the
action that needs to be judged; it was not some official that took the action, the judges
themselves did the deed.’